Dattatraya Govind Mahajan & Ors Vs. State of Maharashtra & ANR [1977] INSC 31 (27 January 1977)

BHAGWATI, P.N.

RAY, A.N. (CJ) BEG, M. HAMEEDULLAH KRISHNAIYER, V.R.

SHINGAL, P.N.

CITATION: 1977 AIR 915 1977 SCR (2) 790 1977 SCC (2) 548

CITATOR INFO:

RF 1977 SC2328 (80) RF 1980 SC1789 (82) RF 1980 SC2097 (2) E 1981 SC 271 (2A,3) F 1985 SC 582 (51) F 1988 SC1104 (7) RF 1989 SC2227 (32) E 1990 SC1771 (12)

ACT:

Maharashtra ,Agricultural Lands (Ceiling of Holdings) Act, 1961 as amended the Maharashtra Agricultural Lands (Lowering of Ceiling of Holdings) Amendment Acts 1972 and 1975 (Maharashtra Acts 21 of 1975 and 47 of 1975 and 2 of 1976)--Ss. 2(11A), 2(22), 3.4.5.(1) r/w Schedule I and Section 6-Principal Act and the various amending Acts, placed in the Ninth Schedule-Whether the Act as amended, in so far as it creates an artificial family unit and fixes a ceiling on holding of land by such family unit is void and violative of the second proviso to clause (1) of Art. 31A and not saved by the immunising provision enacted in Art.

31B.

Constitution of India, 1950--Art. 31B, interpretation of Constitution of India, 1950--Art. 31 (A) (1), Second proviso--Whether confers a Fundamental Right.

Constitution of India 1950 (Seventeenth Amendment) Act, 1964, S. 3--Explanation--Construction of Interpretation of Statutes--Construction of a "proviso" to a section or clause in an enactment.

HEADNOTE:

Punjab Land Reforms Act, 1972 included in the protective umbrella of the Ninth Schedule, subsequent to the decision of the High Court declaring certain provisions thereof as unconstitutional Art. 3lB being retrospective is entitled to the immunity conferred by it.

U.P. Imposition of Ceiling on Land Holdings Act (Act No.

1) 1971 as amended by Act No. 18 of 1973 and Act No. 2 of 1975, all included in the, Ninth Schedule--The question, whether s. 5(6) is violative of second proviso to clause (1) of Art. 31A of the Constitution cannot be assailed by reason immunity enacted in Art. 31B.

The Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 which was enacted in implementation of the Directive Principles of State Policy contained in clauses (b) and (c) of Art. 39 of the Constitution imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons with a view to securing the distribution of agricultural land in a manner which would best observe the common good of the people.

Maharashtra Amendment Act 21 of 1975 effected radical amendments in the principal Act by lowering the ceiling on agricultural holding and created a concept of artificial family unit for fixing ceiling on holdings of agricultural land.

The person as defined in s.2(22) r/w. s.2(11) and his spouse and their minor daughters were clubbed together for the purpose of constituting a family unit as defined in the Explanation to s.4 sub-section (1) and all lands held by each member of the family unit whether jointly or separately were aggregated together, and by a fiction of law deemed to be held by the family unit.

The appellant landlords in the State of Maharashtra preferred writ petitions in the High Court of Bombay challenging the constitutional validity of the Principal .Act, as amended on various grounds since the effect of the provisions of the principal Act as amended by the three Maharashtra Acts, viz. 21 of 1975, 47 of 1975 and 2 of 1976 was to expropriate a part of the lands belonging to concept of family unit and fixed a ceiling 'on holding of land by such family unit, it was violative of the second proviso to clause (1) Art. 31A and was not saved by the immunising provision enacted in Art. 3lB. The High Court dismissed them. The main contention was that in so far as the Act created an artificial 791 the petition holding that Art. 3lB afforded complete immunity to the provisions of the principal Act.

In appeal by special leave to this Court, the appellant contended: (1) On a true construction of Art. 31B a post constitution enactment such as the Act is protected from invalidation only when it merely transgresses a restriction on legislative competence imposed by any provision of that Part and is therefore inconsistent with such provision.

The larger ground of validation curing generally any inconsistency with any provision of Part III is available only in case of pre-constitution legislation. (ii) The second proviso to clause (1) of Art. 37A does not confer any Fundamental Right but merely imposes a limitation,on the legislative competence of the legislature and, therefore, Art. 3lB does not exonerate the Act from its obligation to conform with the requirements of the second proviso to clause (1) of Art. 31. (iii) To interpret the second proviso as conferring a Fundamental Right would convert the second proviso into a substantive provision and that would be contrary to the well-recognised canon of construction that a proviso must be read so as to carve out from the main provision something which would otherwise fall with it and (iv) The Explanation to s.3 of the Constitution (Seventeenth Amendment) Act, 1964 shows that an acquisition made in contravention of the second proviso to clause (i) of Act.

31A is void and does not have the protection of Art. 3lB.

even if the law under which such acquisition is made is included in the Ninth Schedule.

Dismissing the appeals, the Court, Held: Per Bhagwati J. (for himself and on behalf of Ray, C.J., Beg and Shinghal, JJ.) (1) The Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 as amended by Maharashtra Acts 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 in so far as it creates an artificial concept of family unit and fixes a ceiling on holding of land by such family unit, does not conflict with the second proviso to clause (1) of Art.

31A. [810 E] (2) It would not be possible to say in the ease of an individual member of the family unit that when any land held by him under his personal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit, the acquisition is of any land "within the ceiling limit applicable to him" and hence in such a ease there would be no question of any violation of the provision enacted in the second proviso to clause (1) of Art. 31A in so far as the land held by him is concerned.

It may be that by reason of the creation of an artificial concept of a family unit, one or more members of the family unit may lose the land held by them, but that cannot be helped, because having regard to the social and economic realities of our rural life and with a view to nullifying transfers effected in favour of close relations for the purpose of avoiding the impact of ceiling legislation, a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area. [809 H, 810 A-B] (3) Even if the Act, in so far as it introduces an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit, is violative of the second proviso to clause (1) of Art. 31A it is protected by Art. 31B, by reason of its inclusion in the Ninth Schedule. [808 F-G] Hasmukhlal Dayabhai v. State of Gujarat [1977] 1 SCR 103 followed.

(4) It is an elementary rule of construction that a statutory provision must always be interpreted in a manner which would suppress the mischief and advance the remedy and carry out the object and purpose of the legislation. Our Constitution has a social purpose and an economic mission and every Article of the Constitution must, therefore. be construed so as to advance the social purpose and fulfill the economic mission it seeks to accomplish. [803 F-G] (5) The aim and objective of Art. 3lB is to make the most comprehensive provision for saving agrarian reform legislation from invalidation on the ground of infraction of any provision in Part III and it must therefore be so interpreted as to have the necessary sweep and coverage. An expansive interpretation must be placed on the language of Art. 31B so to carry out the object and purpose of enacting that Article. [803 F-H] 792 (6) Article 3lB is sufficiently wide to protect legislation not only where it takes away or abridges any of the rights conferred by any provisions of Part but also where it is inconsistent with any such provisions. [803 H, 804 A] (7) The words "such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of this Part" in Art. 31B are clearly an echo of the language of clauses (1) and (2) of Art. 13 and they have obviously been employed because the enactments Specified in the Ninth Schedule may be pre-constitution as well as post-constitution laws but, it would not be right to introduce an artificial dichotomy in Art.

3lB by correlating the first part of the expression namely, "is inconsistent with ......any provisions of this Part" and confining its applicability to pre-constitution legislation and correlating and confining the applicability of the other Part of the expression namely "takes away or abridges any of the rights conferred by; any provisions of this Part" to post constitution legislation. Both the parts of the expression, on a plain natural construction of the language of Art. 3lB apply equally to post-constitution legislation as well as pre-constitution legislation. [803 D-F] (8) The Second Proviso to clause (1) of Art. 31A does confer a Fundamental Right. The second proviso to Art. 31A confers a right higher than the one under clause (2) of Art.

31 on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applicable to him and if the Act by creating an artificial concept of a family unit and fixing ceiling on holding of agricultural lands by such family unit enables land within the ceiling limit to be acquired without payment of full market value, it would be taking away or abridging the right conferred by the second proviso, but it would be protected by Art. 31-B. [804. B, 806 E] (9) The second proviso to clause (1) of Art. 31A is also couched in the negative language like clauses (1) and (2) of Art. 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment, of compensation at a rate not less than the market value. This limitation on the legislative power of the State is the measure of the fundamental right conferred on the owner of the land. It is by imposing limitation on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit.

[805 D-E] State of Bihar v. Kameshwar Singh [1952] SCR 889 .@ 986;

R.C. Cooper v. Union of India [1970] SCR 530 @ 569, reiterated.

(10) Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to each other. They are merely two different facets of the same provision. What is limitation of legislative power from the point of view of the State is conferment of right from the point of view of holder of land within the ceiling limit. The former secures the latter.

The second proviso in effect guarantees protection to the holder against acquisition of that portion of the land which is within the ceiling limit except on payment of the market value of such land. The second proviso clearly confers a right to property on a person holding land under his personal cultivation. [805F-G] (11) The Explanation to s. 3 of the Constitution (Seventeenth Amendment) Act 1964 does no 'more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause (1) of ..Art. 31A, it shall, to the extent of contravention be void. Obviously this Explanation was rendered necessary, because otherwise, acquisition under the Rajasthan Act, 1955, even if in contravention of thee second proviso to clause (.1) of Art. 31A would have been valid under Art. 31B and that result the parliament did not wish to produce. It was manifestly not the intention of Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where if conflicts with the second proviso to clause (I) of Art. 31A and that Art. 3lB should not protect it from invalidation. [806 G, 807 F-H] 793 (12) It is true that the orthodox function of 'an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it, but ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention. [807 D-E] (13) It is true that the proper function of a proviso is to except or qualify something enacted in the substantive clause, which, but for the proviso would be within that clause. The question is one of interpretation of the proviso and there is no rule that the proviso must always be restricted to the ambit of the main enactment. [805-H, 806A] Ishwarlal Thakarlal Almania v. Motabhai Nagjibhai [1966] 1 SCR 367 @373, followed.

C.A. 1040/76.

(14) The inclusion of the Punjab Land Reforms Act, 1972, in the Ninth Schedule as entry 78 by the Constitution.(Thirty Fourth Amendment) Act, 1974 subsequent to the decision of the High Court entitles it to the immunity conferred by Art. 3lB. It does not suffer from any of the constitutional infirmities alleged in the writ petition.

[814 C-E] Hasmukhlal v. State of Gujarat (1977) 1 SCR 103, applied.

C.A. 1307/76.

(15) Section 5, sub-section (6) of the U.P. Imposition of Ceiling on Land Holdings Act is valid and its constitutional validity cannot be assailed by reason of the immunity enacted in Art. 3lB. Section 5(6), even if it contravenes second proviso to clause (1) of Art. 31A is validated under Art. 3lB by virtue of inclusion under the protective umbrella of the Ninth Schedule.[812 C-E] Per Krishna Iyer, J. (concurring) (1) The Maharashtra, the Punjab and the U.P. Acts are not unconstitutional taking the constructive view that Art.

31-B vis-a-vis agrarian reforms is a larger testament of vision and values in action and a bridge between individual right and collective good. [824 B-C] (2) The purpose of Art. 31-B is conferment of total immunity from challenge on the score of violation of Part HI. The words used are as comprehensive as English language permits. No land reform law shall be narrowed down by use of Part III, once included in the Ninth Schedule. No matter what the grounds are, if they are traceable to Part III in whatever form, they fail in the presence of Art. 3lB.

No master of English legal diction could have used, so tersely, such protean words which in their potent totality bang, bar and bolt the door against every possible invalidatory sally based on Part III. It is not correct to argue that the phraseology of Art. 3lB must be correlated to Art.

13 and read with a truncated connotation. [817 H, 822 E-F, G] (3) Every Fundamental Right, from the point of view of the individual, gives a right and from the stand point of the State is a restraint. Whether the manner of expression used is in positive terms or negatively, whether the statutory technique of a proviso, saving clause, exception or explanation, is used of' 1 direct interdict is imposed, the substantive content is what matters. Many of the Articles in Part III worded in a variety of ways, arm the affected individual with a right and pro tan to prohibit the legislature and the executive from enacting or acting contra. [823 A-B] (4) A great right is created in favour of owners to get compensation at not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State. This is a fundamental right and is a creature of the 2nd proviso to Art. 31-A(1). An independent provision may occasionally incarnate as a humble proviso. [823 F-G] (5) It is absolutely plain that in the context setting and purpose of a provision even a proviso may function as an independent clause. [823 G]

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos: 1132-1164 1976 794 (Appeals by Special Leave from the Judgment and Order dated 13-8-76 of the Bombay High Court (Nagpur Bench) in S.C.A. Nos. 1758, 1481, 2130/75, 358, 359/76, 2089, 1456, 1818, 1823, 1824, 1950, 1951/75, 53/76, 803/76, 1440/75, 340/76, 1449, 1452, 1394/75, 40, 771, 1431, 1531, 1532/76, 1652, 1622/75, 120, 126, 428, 610, 1317, 1831/75 respectively) and Civil Appeal No. 1307 of 1976 (From the Judgment and Order dated 2-9-1976 of the Allahabad High Court in Civil Misc. Writ No. 9257/75) and Civil Appeals Nos. 1040 of 1975 and 1220-1248 of 1976 (From the Judgment and Order dated 14-2-74 and 1-11;73 of the Punjab & Haryana High Court in Civil Writ Nos. 3150, 3145, 3210, 3254, 3287, 3288, 3293, 3456, 3457, 3458-63, 3469-3470, 3472, 3547-3550, 3564, 3565-3568, 3629/73 and 4004/74) and Special Leave Petition (Civil Nos. 3023-3027, 3894.

4026-4027, 3177-3197, 3203-3213, 3358-3359, 3392-3404, 3477-3483, 36613663, 3059-3060, 3487-3488, 4047, 3365-3377, 3406-3434, 34393464, 3495-3511, 3516-3517, 3519, 3529-3551, 3645-3660, 36803695, 3719-3782, 3787-3816, 3843-3846, 38533864, 3867-3868, 3696-3703, 3199, 3467-3476, 3524-3537, 3597-3621, 3889-3893, & 3899-3902/76.' V.M. Tarkunde, (CAs. 1132 & 1147), S. N. Khardekar, in CAs. 1132 & 1133 M/s. Vallabh Das Mohta, in CA. 1156/76, Dr. N.M. Ghatate, S. Balakrishnan &A.M. Bapat, in CAs. 1132 & 1147 for the appellants in CAs. 1132-1136, 1147 & 1150-64.

S.B. Wad & Mrs. Jayashree Wad, for the Appellants in CAs. 1137-1146, 1148-49.

Niren De, Attorney General in CAs. 1132 & 1137, M/s.

M.M. Kazi & M.N. Shroff for the Respondents Niren De, Attorney General, R.N. Sachthey, for the Attorney General in CAs. 1132, 1307 & 1040.

K. Rajendra Chowdhary, for the interveners M/s. Shankar Balaji Jagtap, Madan Lal Fakir Chand Dudheida and Chandrabhan Roopchand Dakale (in CA. 1132).

L.N. Sinha, Sol. Genl. O.P. Rana, CA. No. 1307 of 1976, for the Appellants.

S. Markendaya, for the Respondents in CAs. Nos. 1040/75 & 12201248 of 1976 :-L.N. Sinha, Sol. Genl., (1. S. Wasu, Advocate General, Punjab) O.P. Sharma, Mrs. N. Uppal and Miss Musum Chaudhary, for the Appellants.

795 V.M. Tarkunde, in CA. 1223--(M/s, K.P. Bhandari. J.B.

Dadachanji and D.N. Mishra, For the Respondents in CAs. Nos. 1223 &1225/76.

Mr. V.M. Tarkunde, for Mrs. Gita Bhadur---M/s. K.P. Bhandari, J.B. Dadachanji, M.M. Ahuja & D.N. Mishra, for the Interveners Mrs. Gita Bhadur, Brij Bhushan Shinghal, Smt. Led Amol Kaur, Mrs. Uma Shinghal in CA. 1220.

K.L. Jagga, D.D. Sharma, Sant Singh in CAs. 1220-48 and 1040.

R.N. Sachthey, State of Haryana.

For the Petitioners in: S.L.Ps. (Civil) :-Naunit Lal and Miss Lalita Kohli, SLPs. Nos. 3023-27, 3894 & 4026-27.

S.B. Wad and Mrs. Jayashree Wad, SLPs. Nos. 3177-97, 3207-13, 3358-59, 3392-3404, 3477-3483, 3661-3663, 3059--69, 3487-88 & 4047/76 & 3199/76.

Vallabh Das Mohta, N.M. Ghatate and S. Balakrishnan, SLPs. Nos. 3365-77, 3406-34, 3439-64, 3495-3511, 3516-17, 3519, 3529-51, 3645-3660, 3680-95, 3719-82, 3787, 3816, '3843-46, 385364, 3867-68 of 1976.

K.B. Rohtagi, M.K. Garg and M.M. Kashyan, SLPs. Nos. 36963703/76.

A.G. Ratnaparkhi, SLPs. Nos. 3467-3476/76.

V.N. Ganpule, SLPs. (Civil) Nos. 3524-27/76.

M.S. Gupta & B.B. Marwal, SLPs. (Civil) Nos. 3597-3621/76.

R.A. Gupta, SLPs. (Civil) Nos. 3889-93/76.

Mrs. S. Bhandare, M.S. Narasimhan, A.K. Mathur, A. K. Sharma and K.C. Sharma, SLPs. (Civil) Nos. 3899-3902/76.

The Judgments of A.N. Ray, C.J., M.H. Beg, P.N. Bhagwati and P.N. Shinghal, JJ. were delivered by Bhagwati, J., V.R.

Krishna Iyer, J. gave a separate Opinion.

BHAGWATI, J. This is a group of appeals preferred by certain landholders in the State of Maharashtra against the judgment of the Bombay High Court upholding the constitutional validity of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 (hereinafter referred to as the Principal Act) as amended by the Maharashtra Agricultural Lands (Lowering of Ceiling of Holdings) (Amendment) Act, 1972 (hereinafter referred to as the Maharashtra Act 21 of 1975), the Maharashtra Agricultural Lands (Lowering of Ceiling of Holdings) (Amendment) Act, 1975 (hereinafter referred to as "'Maharashtra Act 47 of 1975 ) and the Maharashtra Agricultural Lands (Ceiling of Holdings) (Amendment) Act, 1975 (hereinafter referred 10 as Maharashtra Act 2 of 1976). The Principal Act was enacted 3--206SCI/77 796 by the Maharashtra Legislature in implementation of the Directive Principles of State Policy contained in clauses (b) and (c) of Art. 39 of the Constitution. It imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons. During the subsequent years, various amendments were made in the Principal Act from time to time and the Principal Act, as amended upto that date, was included in the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964.

Thereafter certain further amendments were made in the Principal Act and the amending Acts were also included in the Ninth Schedule as a result of the Constitution (Thirty ninth Amendment) Act, 1975. Then came three major amending Acts which, according to the appellants, introduced the vice of unconstitutionality in the Principal Act. Maharashtra Act 21 of 1975 effected radical amendments in the Principal Act by lowering ceiling on agricultural holding and creating an artificial family unit for fixing ceiling on holding of agricultural land. This amending Act was followed by Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 which affected certain further changes in the Principal Act but these are not very material for the purpose of the present appeals. Since these three amending Acts were enacted after the Constitution (Thirty-ninth Amendment) Act, 1975, they were included in the Ninth Schedule along with certain other enactments by the Constitution (Fortieth Amendment) Act, 1976. The result was that the Principal Act, as amended by all the subsequent amending Acts including Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was protected against invalidation under Art.

31-B.

The appellants are landholders in the State of Maharashtra and since the effect of the provisions of the Principal Act, as amended by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was to expropriate a part of the lands belonging to them, they preferred writ petitions in the High Court of Bombay challenging the constitutional validity of the Principal Act as amended by these amending Acts on various grounds. It is not necessary for the purpose of the present appeals to set out the different grounds on which the constitutional challenge was based, since none of these grounds has been pressed before us save one based on contravention of the second proviso to cl. (1) of Art. 31A. the only contention that has been urged before us on behalf of the appellants is that the Principal Act, as it stands after its amendment by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 is void, in so far as it creates an artificial family unit and fixes a ceiling on holding of land by such family unit, since it is violative of the second proviso to Clause (1) of Art. 31A and is not saved by the immunising provision enacted in Art. 31-B. This contention was also urged before the High Court but it was negatived on the ground that Art. 3lB afforded complete immunity to the provisions of the Principal Act. We may make it clear at this stage that for the sake of convenience, when we hereafter refer to the Act, we mean the Principal Act as amended by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976.

797 The appellants in the present appeals assail this view taken by the High Court and the only question which, 'therefore, arises for consideration is as to. whether the impugned Act, in so far as it creates an artificial concept of family unit for fixing ceiling on holding of land by such family unit, is in conflict with the second proviso to clause (1) of Article 31A and if it is, whether it is protected under Article 31-B ? Though logically the first part of the.

question as to infraction of the second proviso. to clause (1 ) of Article 31A should receive our consideration earlier in point of time, it would be convenient first to examine the second part of the question, for if we are of the view that Article 31-B immunises the Principal Act against attack on the ground of violation of the second proviso to Article 31A, it would become unnecessary .to consider whether in fact there is any infraction of the second proviso to clause (1) of Article 31A. But before we examine the scope and 'applicability of Article 3lB in the present case, it would be desirable to refer to a few relevant provisions of the Principal Act.

The Preamble and the long title of the Principal Act show that it was enacted to impose a maximum ceiling on the holding of agricultural land in the State of Maharashtra and to provide for the acquisition of land held in excess of ceiling and for the distribution of such land to landless and other persons with a view to Securing the distribution of agricultural land in a manner which would best sub-serve the common. Good of the people. Section 2 contains various definitions of which only one is material, namely that contained in subsection (11A). That sub-section defines family unit to mean a family unit as explained in section 4.

Section 3 imposes a prohibition on holding of land in excess of ceiling area and so far as material, it reads as follows:

"3(1 ) Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the commencement date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided.

(2) All land held by a person, or as the case may be, a family. unit whether in this State or any other part of India in excess of the ceiling area, shall, notwithstanding anything contained in any law for the time being in force or usage, be deemed to be surplus land, and shall be dealt with in the manner hereinafter provided for surplus land.

In determining surplus land from the holding of a person, or as the case may be, of a family unit, the fact that the person or any member of the family unit has died (on or after the commencement date or any date subsequent to the date on which the holding exceeds the ceiling area, but before the declaration of surplus land is made in respect of that holding) shall be ignored; and accordingly, the surplus land shall be determined as if that person, or as the case may be, the member of a family unit had not died." 798 What shall be regarded as land held by a family unit is laid down in section 4, sub-section ( 1 ) which provides:

"(4) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit be deemed to be held by the family unit.

Then there is an explanation to this subsection which explains a 'family unit' to mean:

"(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters; if any; or (b) where any spouse 'is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and miner unmarried daughters of such deceased spouses." Section 5, sub-section (1) read with the First Schedule provides for different ceilings for different classes of lands in the various districts and talukas of the State and sub-sections (2) and (3) lay down the method of computation of the ceiling area where different classes of lands are held by a person or a family Unit. Then follows section 6 which is in the following terms:

"Where a family unit consists of members which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one-fifth of the ceiling area for each member in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area." This is followed by sections 8 to 11A which deal with restrictions on transfers and acquisitions and consequences of contraventions and sections 12 to 21A which provide inter alia for holding an enquiry for determination of land held in excess of the ceiling area and making of a declaration by the Collector stating his decision on the total area of land which is in excess of the ceiling area and the area, description and full particulars of the land which is delimited as surplus land. Sub-section (4) of section 21 provides that us soon as may be after the announcement of the declaration, the Collector shall take in the prescribed manner possession of the land which is delimited as surplus and the surplus land shall, with effect from the date on which possession is taken, be deemed to be acquired by the State Government for the purposes of the Act and shall accordingly vest, without further assurance and free from all encumbrances, in the State Government. Sections 21 to 26 provide for determination and payment of compensation for the surplus land acquired by the State Government. Then follow provisions in sections 27 to 29 in regard to distribution of surplus land. These provisions require the State 799 Government to distribute the surplus land. in certain order of priority with a view. to carrying out the purposes of the legislation. Sections 30 to 36 lay down the procedure for holding inquiries under the Act and also provide for appeal mechanism. These are followed by certain miscellaneous provisions in sections 37 to 49 which are not material for the purpose of the present appeals.

It will be seen from this brief resume of the relevant provisions of the Act that there are two units recognised by the Act for the purpose of fixing ceiling on holding of agricultural land. One is 'person' which by its definition in section 2, sub-section (22) includes a family and 'family' by virtue of section 2, sub-section (11 ) includes a Hindu Undivided family and in the case of other persons, a group or unit the members of which by custom or usage, are joint in estates of possession or residence, and the other is 'family unit as defined in ,the Explanation to section 4 sub-section (1). So far as the applicability of the Act to.

a 'person' is concerned, there is no conceptual difficulty, for any person, natural or artificial, can hold land and if the land held by such person is in excess of the ceiling laid down in section 5, sub-section (1 ) read with the First Schedule, the surplus land would vest in the State Government. But the Act has created an artificial 'family unit' and a person and his spouse and their minor sons and minor unmarried daughters are clubbed together for the purpose of constituting a family unit and all lands held by each member of the family unit, whether jointly or separately, are aggregated together and by a fiction of law deemed to be held by the family unit. We have described the family unit as contemplated in the Act as an artificial legal conception because in quite a few cases it would be different from the family as known in ordinary parlance: the latter would include 'even major sons and unmarried daughters which the former by its definition does not. It is clear from the scheme of the Act that for the purpose of determining whether land is held in excess of the ceiling area, a family unit is taken as a unit and the limitation of ceiling area is applied in relation to the land deemed to be held by such family unit and in such a case, each individual member of the family unit is not treated as a separate unit for the purpose of applicability of the limitation of ceiling. The land held by each member of the family unit is fictionally treated as land held by the family unit and to the aggregate of such land which is deemed to be held by the family unit, the limitation of the ceiling area is applied.

This feature of clubbing together the land held by each member of family unit for the purpose of applying the limitation of ceiling. area, it may be noted, was introduced by the amendments made 'by Maharashtra Act 21 of 1976 almost fourteen years after the Principal Act was enacted and it is interesting to notice the reasons why it had to be done.

The necessity for wide ranging radical land reforms in order to improve our rural economy was acutely realised when, on attaining independence, we became free to mould our destinies. With that end in view, immediately after independence, the legislatures of the country started enacting laws for bringing about agrarian reform as a part of the process of socio-economic reconstruction. The imposition of ceiling on agricultural holdings was found necessary as a part 800 of the scheme of agrarian reform because it was calculated to remove undue balance in society resulting from landless class on the one hand and concentration of land in the hands of a few on the' other. The concept of socio-economic justice embodied in the Constitution in fact rendered the imposition of ceiling inevitable, as this step was symbolic of new social ideas.(1) The growth of monopolistic tendencies in land ownership had to be arrested, if the optimum area was to be made available to the largest number of people. The Panel on Land Reform set up by the Planning Commission in 1955, there from, unanimously accepted the principle that there should be an absolute limit to the amount of land which any individual might hold and .observed that the policy of imposition of ceiling should be able to.

make contribution towards achieving the following objectives: (1) meeting the widespread desire to possess land;

(ii) reducing glaring inequalities in ownership and use of land; (iii) reducing inequalities in agricultural income and (iv) enlarging the sphere of self-employment. The Second Five Year Plan also pointed out:

"In the conditions of India large disparities in the distribution of wealth and income are inconsistent with economic progress in any sector. This consideration applies with even greater force land. The area of land available for cultivation is necessarily limited. In the past rights in land were the principal factor which determined both social status and economic opportunity for different groups in the rural population.

For building up a progressive rural economy, it is essential that dissimilarities in the ownership of land should be greatly reduced.

and added that this step would go a long way "----to afford opportunities to. landless sections of the rural population to gain in social Status and to feel a sense of opportunity equally with other sections of the community." It is emphatic that in the conditions which prevail in rural India, the possession of some land in itself would be an immunity against abject poverty and would ensure for the owner some minimum resources to fall back upon and his economic and social condition would also improve on account of his owning some land which he can call as his own. The Agricultural Labour Enquiry conducted in the 1960s showed that the average of per capita income of an agricultural labourer with land was much more than the average or per capita income of an agricultural labourer without land.

The policy of imposing ceiling on agricultural holdings was, therefore, initiated in the country with the twin objectives of changing the skewed distribution of agricultural land ownership in the country and making some land available for distribution among the landless. It was in implementation of this policy that the Principal Act was passed by the Maharashtra Legislature in 1961. The ceiling which was initially fixed was found to be rather high and it had, therefore, to be lowered by (1) India--Progress of Land Reforms 1955, p. 19.

801 subsequent amendments. But until the enactment of Maharashtra Act 21 of 1976, ceiling was made applicable only to holding of agricultural at lands by individuals. However, it was felt that if the ceiling law was to be really effective, it was necessary to take the family as a unit for the purpose of applying the ceiling. There were two main reasons which inclined the legislature to this view. One was that, in the context of the social and cultural realities of Indian rural life, "family is the real operative unit in land ownership as in land management" and, therefore, in the fixing of the ceiling, the aggregate area held by all the numbers of the family should be taken into account"(1) and the other was that taking the family as a unit and imposing ceiling on the aggregate land held by all the members of the family acted as a disincentive to effect mala fide transfers in the names of close relations such as wife, minor sons and unmarried daughters with a view to bringing the holdings within the ceiling and operated to nullify such transfers where they had been effected with a view to circumventing the ceiling imposed on land holding.

Maharashtra Act 21 of 1975, therefore, introduced the concept of family unit and fixed ceiling on holding of agricultural land by the family unit. The question is whether the Act, in so far as it makes this radical provision, is protected under Article 31-B, even if it is found to violate the second proviso to clause (1) of Article 31A.

The determination of this question turns on the true interpretation of Article 31-B and its applicability in relation to the second proviso to clause (1) of Article 31A. Article 31A, clause (1) provides that, notwithstanding anything contained in Article 13, no law falling within any of the categories specified in sub-clauses (a) to (e), shall be deemed to be void on the ground that it is inconsistent with or takes away. or abridges any of the rights conferred by Article 14, Article 19 or Article 31.Then follow two provisions which are in the following terms:

"Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto. unless such law, having been reserved for the consideration of the President, has received his assent ;

Provided further than where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure stranding thereon or appurtenant thereto, unless the law relating to acquiring of such land, building or structure, provides for payments of compensation at a rate which shall not be less than the market value thereof." Article 31A together with the first proviso was added in the Constitution by the Constitution (First Amendment) Act, 1951, while the (1) Report of the Committee on 'Size of Holdings' set up by the Panel on Land Reforms.

802 second proviso was introduced by the Constitution (Seventeenth Amendment) Act, 1964. Article 31-B was .also introduced in the Constitution at the same time as Article 31A and it reads as follows:

"31-B. Without prejudice to. the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away of abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force." The argument of the appellants was that on a true construction of the language of Article 31-B a post-Constitution enactment such as the Act, is protected from invalidation only when it rakes away or abridges any of the rights conferred by any provision of Part III and not when it merely transgresses a restriction on legislative competence imposed by any provision of that part and is, therefore, inconsistent with any provision. The later ground of validation during curing generally any inconsistency with any provision of Part III is available only in case of pre Constitution legislation. What is, therefore, to be seen in the present case is whether any right is conferred by the second proviso to clause (1) of Article 31A which has been taken away or abridged by the Act, for then alone can the Act which is a post-Constitution enactment, earn the immunity given by Article 31-B. The appellants contended that the second proviso to clause (1) of Article. 31A does not confer any fundamental right but merely imposes a limitation on the legislative competence of the legislature and, therefore, Article 31-B does not exonerate the Act from its obligation to conform with the requirement of the second proviso to clause (1 ) of Article 31A. We do not think this contention is well founded. It is plainly erroneous. It flies in the face of the express language of Article 31-B and also ignores the true meaning and effect of the second proviso to clause ( 1 ) of Article 31 A.

Whilst interpreting Article 31-B it is necessary to bear in mind the object and purpose of the enactment of that Article by the Constitution (First Amendment) Act, 1951.

This article was introduced in the Constitution within almost eighteen months of the commencement of the Constitution, because it was found that agrarian reform legislation was running into rough weather and the policy of agrarian reform was being frustrated. Without a dynamic programme of agrarian reform, it was not possible to change the face of rural India and to upgrade the standard of living of the large masses of people living in the villages. In fact the promise of agrarian reform is implicit in the Preamble and the Directive Principles of State Policy and it is one of the economic foundations of the Constitution. It was, therefore felt that laws enacted for the purpose of bringing about agrarian reform in its widest sense-agrarian reform which would be 803 directed against gross inequalities in land ownership, disincentives to production and desperate backwardness of rural life and which would cover not only abolition of intermediary tenures zamindaris and the like but restructuring of village life itself taking in its broad embrace the entire rural population--should be saved from invalidation.

It was with this end in view that Article 31-B was introduced in the Constitution along with Article 31A. The object 'and purpose of introducing Articles 31A and 31-B was to protect agrarian reform legislation from invalidation. We shall consider the provisions of Article 31A a little later when we examine the true meaning and effect of the second proviso to clause (1) of that ,article. But so far as Article 31-B is concerned, it is clear on its plain terms that it saves from invalidation an enactment specified in the Ninth Schedule even if it happens to be "inconsistent with or takes away or abridges any of the rights conferred by, any provisions, of Part III". It is immaterial whether such enactment is inconsistent with any provisions of Part III or takes away or abridges any of the rights conferred by any such provisions, for both infirmities are cured. by Article 31-B. The words "such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part" in .Article 31-B are clearly an echo of the language of clauses (1) and (2) of Article 13 and they have obviously been employed because the enactment specified in the Ninth Schedule may be pre-Constitution as well as postConstitution laws. But it would not be right to introduce an artificial dichotomy in Article 31-B by correlating the first part of the expression, namely, "is inconsistent with--any' provisions, of this Part" and confining its applicability to pre-Constitution legislation and correlating and confining the applicability of the other part of the expression, namely, "takes away or abridges any of the rights conferred by, any provisions of this Part to postConstitution legislation. That would be a highly unnatural construction unjustified by the language of Article 31-B.

Both the parts of the expression, on a plain natural construction of the language of Article 31-B, apply equally to. post-Constitution legislation as welt as pre-Constitution legislation. It must be remembered that the aim and objective of Article 31-B is to make the most comprehensive provision for saving agrarian reform legislation from invalidation on the ground of infraction of any provision in Part 111 and it must, therefore. be so interpreted as to have the necessary sweep and coverage. It is an elementary rule of construction that a statutory provision must always be interpreted in a manner which would suppress the mischief and advance the remedy and carry out the object and purpose of the legislation. Moreover, we must not forget.

as pointed out by Mr. Justice Holmes, that it is the Constitution that we are expanding. Our Constitution has a social purpose and an economic mission and every article of the Constitution must. therefore. be construed so as to advance the social purpose and fulfill the economic mission it seeks to accomplish. The Court must place an expansive interpretation on the language of Article 31-B so as to carry out the object and purpose of enacting that article.

We must, in the circumstances, hold that Article 31-B is sufficiently wide to protect legislation not only where it takes away or abridges any the fights conferred by any provisions of Part III, but also where it 804 is inconsistent with any such provisions. It must follow a fortiori that even if the second proviso to clause (1) of Article 31A is construed as not conferring any fundamental right but merely imposing a restriction on legislative competence, the Act, in so far as it contravenes or is inconsistent with the second proviso to clause (1) of article 31A would still be saved from invalidation by Article 31-B.

But we are clearly of the view that the second proviso to clause(1) of Article 31A does confer a fundamental right. This conclusion is inevitable if we look at the conspectus of the provisions contained in Article 31 and 31A. These provisions occur under the heading "Right to Property" and they define and delimit the right to property guaranteed under Part III of the Constitution.

Article 31, clause (1) protects property against deprivation by executive action which is not supported by law. It is couched in negative language, but, as pointed out by S.R.

Das, J., in State of Bihar v. Kameshwar Singh(1)'' it confers a fundamental right in so far as it protects private property from State action. The only limitation put upon the State action is the requirement that the authority of law is pre-requisite for the exercise of its power to deprive a person of his property. This confers some protection on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right. It is to emphasise this immunity from State action as a fundamental right that' the clause has been worded in negative language". Article 31, clause (1) thus, by giving limited immunity from State action, confers a fundamental right.

Clause (2) of Article 31 then proceeds to impose limitation on the exercise of legislative power by providing that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for acquisition or requisitioning of property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law. This clause is also couched in negative language, but it confers a fundamental right of property on an individual by declaring that his property shall not be liable to be compulsorily acquired or requisitioned except for a public purpose and the law which authorises such acquisition or requisitioning must provide for "payment of an amount which may be either fixed by such law or which may be determined in accordance with the principles and given in the manner specified in such law". The limitation imposed on the power of the legislature to make a law authorising acquisition or requisitioning of property is the measure of the fundamental right conferred by the clause. It was for this reason pointed out by this Court in R.C. Copper v. Union of India(2):

"The function of the two clauses--clauses (1) and (2) of Article 31 is to impose limitations on the power of the State and to declare the corresponding guarantee of the individual to his right to property. Limitation on the power of the State and the guarantee of right are plainly complementary" (Emphasis supplied). Article 31A (1) [1952] S.C.R. 889 at 988.

2 ) [1970] 3 S.C.R. 530 at 569.

805 carves out an exception to the applicability of Article 31--and also Articles 14 and 19--and immunises certain categories of agrarian reform legislation from attack on the ground that they violate any, of these three articles.

Even if any agrarian reform legislation falling within the specified categories infringes Articles 14, 19 and 31, it would not be invalid. Having regard to the high objective of bringing about agrarian reform in the country with a view to improving the life conditions of the common man, such agrarian reform legislation is not required to meet the challenge of any of these three articles. But, in order to earn this immunity, the first proviso requires that such agrarian reform legislation when made by a State must receive the assent of the President. That is a condition for the applicability of the exception contained in Article 31 A. Then follows the second proviso which enacts an exception to this exception. It says that even where a law makes any provision for acquisition by the State. of any estate and thus falls within one of the categories" specified in Article 31A, it would not qualify for immunity under me provisions of that article, if it seeks to acquire any portion of the land held by a person under his personal cultivation which is within the ceiling limit applicable to him under any law for the time being in force and such a law, in order to be valid, would have to provide for payment of compensation at a rate which shall not be less than the market value of the land sought to be acquired. This provision is also couched in negative language like clauses (1) and (2) of Article 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held' by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment of compensation at a rate not less than the market value. This limitation on the legislative power of the State is the measure of the fundamental right conferred on the owner of the land. It is by imposing limitation on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit. Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to each other. They are merely two different facets of the same provision. What is limitation of legislative power from the point of view of the State is conferment of right from the point of view of the holder of land within the ceiling limit. The former secures the latter. The second proviso in effect guarantees protection to the holder against acquisition of that portion of his land which is within the ceiling limit except on payment of the market value of such land. It will, thus, be seen that the second proviso clearly confers a right of property on a person holding land under his personal cultivation. This interpretation was, however, assailed by the appellants on the ground that it would convert the second proviso. into a substantive provision and that would be contrary to the well recognised canon of construction that a proviso must be read so. as to. carve out from the main provision something which would otherwise fall within it. Now, it is true that the proper function of a proviso is to except or qualify something enacted in the substantive clause, which, but for the provision would be within that clause but ultimately, as pointed out by this 806 Court in Ishverlal Thakorelal Almaula v. Motibai Naglibhai(1) "--the question is one of interpretation of' the proviso: and there is no rule that the proviso must always be restricted to the ambit of the main enactment". Here, the intention of the legislature in enacting the second proviso is very clear and that is to ensure payment of full market value as compensation to a person in personal cultivation of his land where a portion of the land within the ceiling limit applicable to him is acquired by the State Government. But for the second proviso, even if a law authorising acquisition of land within the ceiling limit did not provide for payment of compensation, it would be protected from invalidation under Article 31A. That was not a result which the Parliament favoured. Parliament was anxious to protect the interest of the small holder, the common man who holds land within the ceiling limit and therefore enacted the second proviso requiring that a law which permits acquisition of land within the ceiling limit must provide for compensation at a rate not less than the market value. The second proviso in fact restores the right of property with added vigour in case of small holdings of land. it goes much further than Article 31, clause (2) and provides a larger protection, in that, clause (2) of Article

31. merely requires that a law authorising acquisition should fix an amount to be paid for the acquisition or specify the principles in accordance with which the amount may be determined and the manner in which it may. be given--and this may be very much less than the market value--while the second proviso insists that at the least, full market value must be paid for the acquisition. Thus, there can be no doubt that the second proviso confers a right--and this right is higher than the one under clause (2) of Article 31---on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applicable to him and if the Act, by creating an artificial concept of a family unit and fixing ceiling on holding of agricultural land by such family unit, enables land within the' ceiling limit to be acquired without payment of full market value, it would be taking away or abridging the right conferred by the second proviso. In that event too, it would be protected by Article 31-B since it is included in the Ninth Schedule.

Before we part with this contention based on Article 31-B, we must refer to one other argument advanced on behalf of the appellants with a view to repelling the. applicability of Article 31-B. The appellants leaned heavily on the Explanation to. section 3 of the Constitution (Seventeenth Amendment), Act, 1964 and urged that this Explanation shows that an acquisition made in contravention of the second proviso to clause (1) of Article 31A is void and does not have the protection of Article 31-B, even if the law under which such acquisition is made is included in the Ninth Schedule. We do not think this contention is well rounded and in fact not much argument is needed to negative it. The Constitution (Seventeenth Amendment) Act, 1964 was enacted by the Parliament with a view to. expanding the scope of Article 31A by enlarging the meaning of the expression (1) [1966] 1 S.C.R. 367 at 373.

807 'estate' 'and while doing so, the parliament added the second proviso to clause (1) of Article 31A. The Ninth Schedule was also amended by including certain State enactments relating to agrarian reform in order to remove any uncertainty or doubt that may arise in regard to their validity. One of the State enactments included in the Ninth Schedule by this amendment was the' Rajasthan Tenancy Act, 1955 which was added as Entry 55. Section 3 which amended the Ninth Schedule carried the following Explanation:

"Explanation.--Any acquisition made under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 111 of 1955), in contravention of the second proviso to clause (1) of article 31A shall, to the extent of the contravention, be void." This Explanation, contended the appellants, explained the scope and effect of the inclusion of an enactment in the Ninth Schedule vis-a-vis contravention of the second proviso to clause (1) of Article 31A and indicated the parliamentary intent that such inclusion is not intended to save the enactment from the invalidating consequence of the contravention. It was urged that, by taking the illustration of the Rajasthan Tenancy Act., 1955, the Explanation sought to explain and clarify that Article 31-B is not intended to be construed as validating contravention of the second proviso to clause (1 ) of Article 31A. This contention, which seeks to treat the Explanation as illustrative in character, is clearly fallacious. It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to Clear up any doubt or ambiguity in it. But ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention. It must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur. Therefore, even though the provision in question has been called an Explanation, we must construe it according to its plain language and not on any a priori considerations. The Explanation does no more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause (1) of Article 31A, it shall, to the extent of the contravention, be void. Obviously, this Explanation was rendered necessary, because otherwise, acquisition under the Rajasthan Tenancy Act, 1955, even if in contravention of the second proviso to clause (1) of Article 31A, would have been valid under Article 31-B and that result the Parliament did not wish to produce. It was manifestly not the intention of the Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where it conflicts with the second proviso to clause (1) of Article 31A and that Article 31-B should not protect it from invalidation. If such had been the intention of the Parliament, it would have been expressed in clear and unambiguous terms by providing that an acquisition made under any enactment included in the Ninth Schedule, in contravention of the second proviso to clause (1) of Article 31A shall, to the extent of the contravention, be void. Parliament would not have resorted to the device of picking out one legislation from the enactments specified in the Ninth Schedule and declared only in relation to that legislation that any acquisition made under it in contravention of the second proviso to clause ( 1 ) of Article 31A shall be void.

The Explanation, in our view, far from supporting the construction contended for on behalf of the appellants, militates against it. We may also in the passing refer to the view taken by the Allahabad High Court in regard to the true meaning and effect of Article 31-B in relation to the second proviso to clause (1 ) of Article 31A. The Allahabad High Court took the view in a decision given on 14th November, 1975 which is the subject-matter of Civil Appeal No. 1307 of 1976 in this Court that the second proviso to clause (1) of Article 31A places restriction only on executive action and not on legislative action and since Article 31-B validates merely enactments specified in the Ninth Schedule: and not the executive action taken under those enactments, the placing of the Act in the Ninth Schedule does not dispense with the requirement that executive action taken by the State in the shape of acquisition under the Act should conform to. the restriction set out in the second proviso to clause (1) of Article 31A.

This view taken by the Allahabad High Court is a little difficult to understand. The protection afforded by the second proviso to clause (1) of Article 31A is undoubtedly against acquisition by the. State but this protection is secured by imposing limitation on exercise of legislative power and it is the law under the authority of which the acquisition is made which has to conform to the requirement of this proviso. If the law authorising acquisition does not conform with this requirement, it would be void and the acquisition made under it would be unlawful, but for Article 31-B. It is indeed difficult to see how the law authorising acquisition can be valid and yet acquisition mane under it can be void as offending the second proviso to clause (1) of Article 31A. The view taken by the Allahabad High Court is plainly erroneous and must be rejected.

We are, therefore, of the view that even if the Act, in so far as it introduces an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit, is violative of the second proviso to clause (1) of Article 31A, it is protected by Article 31-B